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MOORE 

INTEROCEANIC  CANAL 

ANDTHEHAY-PAUNCEFOlt 

TREATY 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


The  Interoeeanie  Canal 


and  the 


Hay-Pauneefote  Treaty 


JOHN    BASSETT   MOORE 

Professor  of  International  Law  and  Diplomacy,  Columbia  University, 
formerly  Assistant  Secretary  of  State  of  the  United  States  and  Secretary 
and  Counsel  to  the  United  States  Peace  Commission  at  Paris 


REPRINTED    FROM    THE    NEW    YORK    TIMES 

March  4,  igoo 


WASHINGTON 
I  900 


THE  INTEROCEANIC  CANAL 


AND  THE 


HAY-PAUNCEFOTE  TREATY 


JOHN    BASSETT    MOORE 

Professor  of  International  Law  and  Diplomacy,  Columbia  University, 
formerly  Assistant  Secretary  of  State  of  the  United  States  and  Secretary 
and  Counsel  to  the  United  States  Peace  Commission  at  Paris 


KKPRINTKl)    FROM    THE    NEW     YORK    TIMES 

March  4,  igoo 


W  A  S  H  1  N  Ci  r  c )  N 

I  (JOO 


The  Interoceanic  Canal  and  the 
Hav-Pauncefote  Treatv. 


That  the  treaty  signed  at  Washington  February  5,  1900, 
by  Mr.  Hay  and  Lord  Pauncefote,  with  a  view  "to  facili- 
tate the  construction  of  a  ship  canal  to  connect  the  Atlan- 
tic and  Pacific  oceans,"  has  attracted  general  attention 
not  only  in  the  United  States  and  Great  Britain,  but  in 
other  countries  as  well,  is  a  circumstance  neither  singu- 
lar nor  hard  to  explain.  The  treaty,  in  the  first  place, 
relates  to  a  subject  of  world-wide  interest,  in  which  all 
nations  may  be  said  to  have  some  concern,  while  that  of 
maritime  powers  generally  is  direct  and  immediate.  In 
the  second  place,  it  seems  to  mark  a  distinct  advance 
toward  the  accomplishment  of  a  work  which,  though  long 
'  postponed,  has  been  so  persistently  cherished  that  it  has 
■^been  called  "the  dream  of  the  ages."  Thirdly,  it  repre- 
'"^ents  a  notable  achievement  of  American  diplomacy,  in 
that,  while  it  removes  all  obstacles  to  the  construction, 
ownership,  and  operation  of  the  canal  by  the  United 
States,  it  secures  for  the  contemplated  water  way  itself, 
by  a  comprehensive  neutralization,  and  for  "the  plant, 
establishments,  and  buildings,"  and  "all  works"  neces- 
sary to  its  "construction,  maintenance,  and  operation,"  a 
"complete  immunity"  from  injury  or  attack  either  in  war 
or  in  peace. 

It  is  not  my  purpose  nor  my  desire  to  discuss  the  pend- 
ing treaty  in  a  spirit  of  partisanship.  It  has  been  severely 
criticised,  and  it  has  been  ably  defended,  and  in  some  in- 
stances the  discussions  have  developed  errors  which  it  is 
proper  to  ascribe  to  a  lack  of  information   rather  than   to 

3 


an  intention  to  misrepresent.  Nor  do  I  assume  that  all 
men  can  be  brought  to  take  one  view  of  the  questions  at 
issue.  I  say  "questions,"  although  there  is,  in  reality, 
but  one  question  at  issue,  and  that  is  whether  the  exclu- 
sive control  of  the  canal  for  purposes  of  war  is  so  essen- 
tial to  our  national  safety  that  we  should  discard  the 
advantages  that  would  accrue  from  its  neutralization  and 
devote  ourselves  to  the  accomplishment  of  the  opposite 
policy.  And  when  I  speak  of  the  "accomplishment "  of 
the  opposite  policy,  I  refer  to  the  removal  of  existing  dip- 
lomatic obstacles  by  negotiation  and  mutual  accommo- 
dation, as  well  as  to  the  acquisition  by  the  same  means 
of  the  necessary  jurisdictional  rights  in  countries  now 
independent.  While  I  am  one  of  those  who  believe  that 
the  physical  power  of  the  United  States  is  practically 
unlimited,  I  do  not  assume  that  the  United  States  will,  in 
sheer  wantonness  of  power,  disregard  solemn  treaties  and 
violate  the  rights  of  independent  states.  Besides,  there 
seems  to  be  a  certain  incongruity  between  that  just  confi- 
dence which  we  feel  in  our  power  and  the  extreme  appre- 
hensions sometimes  expressed  for  our  safety. 

THE    PRINCIPLE     OF    NEUTRALIZATION. 

In  order  to  comprehend  the  import  of  the  stipulations 
of  the  pending  treaty,  it  is  necessary  at  the  outset  to  un- 
derstand the  significance  of  the  term  "neutralization"  or 
"neutrality "  as  therein  employed.  The  term  "neutral- 
ity," in  its  ordinary  sense,  refers  to  a  state  of  hostilities 
and  denotes  the  attitude  and  the  duty  of  a  noncombat- 
ant  or  neutral  power  toward  the  parties  to  the  conflict. 
It  signifies  not  only  impartiality,  so  far  at  least  as  con- 
duct is  concerned,  but  also  abstention  from  acts  which 
may  aid  either  belligerent  in  its  contest  with  the  other. 
Such  is  the  subjective  sense  of  the  term.  When  used  ob- 
jectively with  reference  to  an  interoceanic  canal,  it  em- 
braces belligerent  as  well  as  neutral  powers,  and,  while 
pointedly  referring  to  the  former,  defines  the  attitude  and 
the  duty  of  both.      It  signifies  that  the  thing  is  "neutral- 


ized;"  that  it  is  to  be  treated  as  "neutral;"  and  therefore 
that  it  is  not  to  be  made  the  object  of  attack,  nor  distinc- 
tively employed  as  the  means  of  hostilities. 

Two  plans  of  neutralization  have  been  proposed:  first, 
that  of  excluding  the  ships  of  war  of  all  belligerents;  and, 
second,  that  of  permitting  their  passage  without  discrim- 
ination. The  former  plan  has  not  prevailed,  and  for  va- 
rious reasons.  The  primary  conception  of  an  interoceanic 
canal  is  that  of  a  highway  always  accessible,  and  nations 
are  disinclined  to  approach  the  subject  on  any  other  basis. 
It  is  foreseen  that,  when  once  the  canal  was  opened,  the 
world  would  soon  become  so  habituated  to  and  dependent 
upon  its  use  that  to  allow  it  to  be  closed  at  the  behest  of 
any  one  power  might  prove  to  involve  inconveniences  alto- 
gether insupportable.  Moreover,  as  the  construction  of 
such  a  work  would  require  the  expenditure  of  a  great 
amount  of  money,  the  general  exclusion  of  belligerent 
men-of-war  would  diminish  the  possibility  of  securing  re- 
imbursement by  means  of  tolls.  Finally,  there  is  no  uni- 
versal criterion  by  which  the  existence  or  nonexistence  of 
a  state  of  war  can  be  determined.  Not  only  may  a  state 
of  war  exist  without  a  prior  declaration,  but  the  question 
whether  war  exists  at  a  particular  moment  may  depend 
upon  the  unexpressed  intention  of  the  parties  as  well  as 
upon  their  acts.  Under  such  conditions  the  attempt  to 
exclude  the  men-of-war  of  belligerents  would  involve  the 
exercise  of  a  wide  discretion  and  of  a  large  measure  of 
arbitrary  power,  and,  being  thus  indefinite  as  to  its 
grounds,  it  might  prove  to  be  uncertain  in  its  operation, 
unjust  and  injurious  in  its  effects,  and  provocative  of  jeal- 
ousies, suspicions,  and  dangerous  quarrels. 

The  second  plan,  of  keeping  the  canal  open  at  all  times, 
without  distinction  as  to  vessels,  has  therefore  been  gen- 
erally approved  as  the  only  one  that  can  be  relied  on  to 
assure  complete  "neutrality"  and  immunity.  As  such  it 
was  made  the  basis  of  the  convention  of  October  29,  1888, 
for  the  free  navigation  of  the  Suez  Canal,  and  is  adopted 
as  the  basal  principle  of  the  pending  treaty. 


Equality  of  tolls  has  also  been  treated  as  a  feature,  or 
perhaps  rather  as  a  condition,  of  neutralization.  Little 
need  be  said  on  this  subject,  since  a  discriminative  policy, 
even  if  it  did  not  lead  to  the  immediate  building  of  another 
canal,  would  merely  provoke  retaliation  in  some  other 
form  and  prove  in  the  end  to  be  impracticable. 

OUR    HISTORIC    POLICY. 

The  principle  of  neutralization  is  a  product  of  modern 
civilization  and  is  one  of  the  means  by  which  nations  have 
endeavored  to  secure  the  largest  possible  freedom  of  navi- 
gation. By  those  great  masters  of  government  and  of 
jurisprudence,  the  Romans,  the  navigation  of  waters  was 
held  to  be  free  to  all.  "By  natural  law,"  say  the  Insti- 
tutes of  Justinian,  "the  following  things  are  common  to 
all:  The  air,  flowing  water,  and  the  sea.  *  *  *  \\\ 
rivers  and  ports  are  public."  ("Et  quidem  natural!  jure 
communia  sunt  omnium  haeo:  aer,  aqua  fluens  et  mare. 
*  *  *  Flumina  autem  omnia  et  portus  publica  sunt. " 
Institutes,  Lib.  II,  I,  sees.  1-2.)  In  the  centuries  of  war- 
fare and  confusion  that  followed  the  fall  of  the  Roman 
Empire,  this  great  principle  gradually  ceased  to  be  ob- 
served. The  practice  of  piracy  and  the  Mussulman  con- 
quests in  the  west,  together  with  other  causes,  contributed 
to  introduce  a  system  under  which  particular  sovereign 
princes  assumed  to  control  and  monopolize  the  navigation 
not  only  of  waters  within  their  own  dominions,  but  also 
of  the  open  seas.  Under  these  conditions  peaceful  inter- 
course was  almost  unknown.  Commerce  and  warfare 
were  practically  synonymous.  The  system  of  exclusion 
and  monopoly  became  intolerable,  and  it  was  overthrown. 
The  United  States  entered  the  family  of  nations  in  time 
to  contribute  powerfully  to  this  result;  and,  as  the  advo- 
cate of  the  freedom  of  the  seas,  it  conceived  of  an  inter- 
oceanic  canal  between  the  Atlantic  and  the  Pacific  as  a 
great  common  highway  of  nations,  which  should  be  open 
on  equal  terms  to  all.  Perhaps  there  are  no  other  Amer- 
ican  statesmen  who  are  at  once  so  prominently  identified 


with  the  two  doctrines  of  the  freedom  of  these  continents 
from  European  domination  and  the  freedom  of  the  seas 
as  John  Ouincy  Adams  and  Henry  Clay;  and,  under  the 
Presidency  of  the  former,  Mr.  Clay,  as  Secretary  of  State, 
referring  to  the  subject  of  "a  cut  or  canal  for  purposes 
of  navigation  somewhere  through  the  isthmus  that  con- 
nects the  two  Americas,  to  unite  the  Pacific  and  Atlantic 
oceans,"  said: 

If  the  work  should  ever  be  executed  so  as  to  admit  of  the  passage  of 
sea  vessels  from  ocean  to  ocean,  the  benefits  of  it  ought  not  to  be  ex- 
clusively appropriated  to  any  one  nation,  but  should  be  extended  to 
all  parts  of  the  globe  upon  the  payment  of  a  just  compensation  or 
reasonable  tolls. 

Nine  years  later,  the  subject  was  taken  up  by  the 
United  States  Senate,  and  on  March  3,  1835,  that  body 
unanimously  adopted  the  following  resolution: 

Resolved,  That  the  President  of  the  United  States  be  respectfully  re- 
quested to  consider  the  expediency  of  opening  negotiations  with  the 
governments  of  other  nations,  and  particularly  with  the  governments 
of  Central  America  and  New  Granada,  for  the  purpose  of  effectually 
protecting,  by  suitable  treaty  stipulations  with  them,  such  individuals 
or  companies  as  may  undertake  to  open  a  communication  between  the 
Atlantic  and  Pacific  oceans  by  the  construction  of  a  ship  canal  across 
the  isthmus  which  connects  North  and  South  America,  and  of  securing 
forever,  by  such  stipulations,  the  free  and  equal  right  of  navigating 
such  canal  to  all  such  nations,  on  the  payment  of  such  reasonable  tolls 
as  may  be  established  to  compensate  the  capitalists  who  may  engage 
in  such  undertaking  and  complete  the  work. 

In  May,  1835,  President  Jackson,  on  the  strength  of 
this  resolution,  appointed  Mr.  Charles  Biddle  to  make  an 
investigation  of  transit  routes.  Mr.  Biddle,  wlio  was 
directed  to  proceed  first  to  Lake  Nicaragua,  went  instead 
to  New  Granada,  and  obtained  from  that  Government  an 
exclusive  grant  to  citizens  of  the  United  States,  by  which 
it  was  provided  that  two-thirds  of  the  stock  created  under 
it  should  be  "the  property  of  Charles  Biddle  and  such 
citizens  of  the  United  States  as  he  might  associali-  with 
him."      Mr.   Biddies  proceedings  were  wholly  disavowed. 

Four  years  later,  in  1839,  the  canal  question  was  brought 


8 

before  the  House  of  Representatives  on  a  memorial  of 
merchants  of  New  York  and  Philadelphia,  and  was  the 
subject  of  an  exhaustive  report.  The  House  then  adopted, 
by  a  unanimous  vote,  a  resolution  closely  following  that 
of  the  Senate,  and  requesting  the  President — 

To  consider  the  expediency  of  opening  or  continuing  negotiations 
with  the  governments  of  other-nations,  and  particularly  with  those  the 
territorial  jurisdiction  of  which  comprehends  the  Isthmus  of  Panama, 
and  to  which  the  United  States  have  accredited  ministers  or  agents,  for 
the  purpose  of  ascertaining  the  practicability  of  effecting  a  communi- 
cation between  the  Atlantic  and  Pacific  oceans  by  the  construction  of 
a  ship  canal  across  the  Isthmus,  and  of  securing  forever,  by  suitable 
treaty  stipulations,  the  free  and  equal  right  of  navigating  such  canal 
by  all  nations. 

On  December  12,  1846,  the  United  States  concluded 
with  New  Granada  (now  the  Republic  of  Colombia)  a 
treaty  which  is  still  in  force.  By  Article  XXXV  of  this 
treaty,  "the  Government  of  New  Granada  guarantees  to 
the  Government  of  the  United  States  that  the  right  of 
way  or  transit  across  the  Isthmus  of  Panama  upon  any 
modes  of  communication  that  now  exist,  or  that  may  here- 
after be  constructed,  shall  be  open  and  free  to  the  Gov- 
ernment and  citizens  of  the  United  States. "'  On  the  other 
hand,  "the  United  States  guarantee,  positive!}'  and  effica- 
ciously, to  New  Granada,  by  the  present  stipulation,  the 
perfect  neutrality  of  the  before-mentioned  Isthmus,  with 
the  view  that  the  free  transit  from  the  one  to  the  other  sea 
may  not  be  interrupted  or  embarrassed  in  any  future  time 
while  this  treaty  exists;  and,  in  consequence,  the  United 
States  also  guarantee,  in  the  same  manner,  the  rights  of 
sovereignty  and  property  which  New  Granada  has  and 
possesses  over  the  said  territory." 

These  stipulations  have  sometimes  been  cited  as  an 
example  of  the  assumption  by  the  United  States  of  an  ex- 
clusive guaranty  with  a  view  to  the  exclusive  control  of 
any  future  canal.  Such  a  construction  can  only  return  to 
plague  those  who  suggest  it.  Not  only  is  it  at  variance 
with   the   guaranty  of   "perfect  neutrality"  and   the  ex- 


press  declaration  with  which  that  guaranty  is  accompa- 
nied, but  it  is  contradicted  by  the  record.  The  object  of 
the  stipulations  was  clearly  set  forth  by  President  Polk, 
who,  in  submitting  the  treaty  to  the  Senate,  said  : 

In  entering  into  the  mutual  guaranties  proposed  by  the  thirty-fifth 
article  of  the  treaty,  neither  the  Government  of  New  Granada  nor 
that  of  the  United  States  has  any  narrow  or  exclusive  view.  The  ulti- 
mate object,  as  presented  by  the  Senate  of  the  United  States  in  their 
resolution  [of  March  3,  1835]  to  which  I  have  already  referred,  is  to 
secure  to  all  nations  the  free  and  equal  right  of  passage  over  the  Isth- 
mus. If  the  United  States,  as  the  chief  of  the  American  nations, 
should  first  become  a  party  to  this  guaranty,  it  can  not  be  doubted — 
indeed,  it  is  confidently  expected  by  the  Government  of  New  Gra- 
nada— that  similar  guaranties  will  be  given  to  that  Republic  by  Great 
Britain  and  France.  Should  the  proposition  thus  tendered  by  rejected, 
we  may  deprive  the  United  States  of  the  just  influence  which  its  ac- 
ceptance might  secure  to  them,  and  confer  the  glory  and  benefits  of 
being  first  among  the  nations  in  concluding  such  an  arrangement 
upon  the  Government  either  of  Great  Britain  or  France.  That  either 
of  these  Governments  would  embrace  the  offer  can  not  well  be  doubted ; 
because  there  does  not  appear  to  be  any  other  effectual  means  of  se- 
curing to  all  nations  the  advantages  of  this  important  passage,  but  the 
guaranty  of  great  commercial  powers  that  the  Isthmus  shall  be  neu- 
tral territory.  The  interests  of  the  world  at  stake  are  so  important  that 
the  security  of  this  passage  between  the  two  oceans  can  not  be  suffered 
to  depend  upon  the  wars  and  revolutions  which  may  arise  among 
different  nations. 

It  was  in  conformity  with  these  unvarying  precedents 
that  the  treaty  between  the  United  States  and  Great  Brit- 
ain, commonly  called  the  Clayton-Bulwer  Treaty,  signed 
at  Washington  April  19,  1850,  was  concluded  and  ratified. 
The  treaty  related,  first,  "to  any  means  of  communica- 
tion by  ship  canal  which  may  be  constructed  between  the 
Atlantic  and  Pacific  oceans  by  the  way  of  the  River  San 
Juan  de  Nicaragua,  and  either  or  both  of  the  lakes  of 
Nicaragua  or  Managua,"  and,  second,  "to  any  other  prac- 
ticable communications,  whether  by  canal  or  railway, 
across  the  isthmus  which  connects  North  and  South 
America."  As  to  the  first — the  Nicaragua  Canal — it  stip- 
ulated that  neither  Government  would  "ever  ol)tain  or 
maintain  for  itself  any  exclusive  control  over  the  said  ship 


lO 

canal,"  or  "ever  erect  or  maintain  any  fortifications  com- 
manding the  same,  or  in  the  vicinity  thereof."  As  to  the 
second,  it  declared: 

The  Governments  of  the  United  States  and  (ireai  Britain,  having 
not  only  desired,  in  entering  into  this  convention,  to  accomplish  a 
particular  object,  but  also  to  establish  a  general  principle,  they  hereby 
agree  to  extend  their  protection,  by  treaty  stipulations,  to  any  other 
practicable  communications,  whether  by  canal  or  railway,  across  the 
isthmus  which  connects  North  and  South  America,  and  especially  to 
the  interoceanic  communications,  should  the  same  prove  practicable, 
whether  by  canal  or  railway,  which  are  now  proposed  to  be  established 
by  way  of  Tehuantepec  or  Panama. 

In  1856  the  Isthmus  of  Panama  was  the  scene  of  grave 
disturbances.  The  transit  by  the  Panama  Railway,  which 
had  then  been  completed,  was  seriously  menaced,  and  on 
one  occasion  it  was  interrupted  by  mob  violence.  Acting 
in  the  spirit  of  the  treaty  of  1846  and  of  the  Clayton- 
Bulwer  Treaty,  the  Administration  of  President  Pierce 
sent  two  commissioners  to  New  Granada  to  propose  the 
creation  of  an  independent,  neutral  district  on  the  Isth- 
mus, with  a  view  to  the  security  of  the  transit  route. 
"It  is  not  designed,"  said  Mr.  Marcy,  then  Secretary  of 
State,  "to  secure  any  exclusive  advantages  to  the  United 
States.  To  remove  all  objections  of  this  sort  an  article  is 
proposed  securing  the  common  use  of  the  Panama  route 
to  all  foreign  nations."  By  this  article  it  was  stipulated 
that  "the  said  road  or  route  shall  be  open  to  the  common 
use  of  all  nations  which  shall,  by  treaty  stipulations,  agree 
to  regard  and  treat  the  district  of  country  aforesaid  at  all 
times  as  neutral,"  and  that  the  contracting  parties  should 
"invite  foreign  nations  to  join  in  the  mutual  guaranty  of 
the  neutrality  of  the  said  country,  of  the  municipal  gov- 
ernments aforesaid,  and  of  the  unobstructed  use  of  the 
said  Panama  Railroad,  or  any  other  road  or  route  which 
may  be  established  across  the  Isthmus  within  the  limits  of 
the  territor}'  before  designated." 

Mr.  Cass,  while  Secretary  of  State  in  185S,  declared  that 
"what  the  United  States  wants  in  Central  America  next  to 


1 1 

the  happiness  of  its  people  is  the  security  and  neutrality 
of  the  interoceanic  routes  which  lead  through  it." 

In  June,  1862,  the  Colombian  Minister  in  Washington 
invoked  the  interposition  of  the  United  States  for  the  pro- 
tection of  the  Isthmus  of  Panama  against  the  revolutionary 
chief  Mosquera.  At  that  time  the  United  States  was  oc- 
cupied with  its  own  civil  war,  and  Mr.  Seward,  with  a 
view  to  redeem  the  pledge  of  "perfect  neutrality"  under 
the  thirty-fifth  article  of  the  treaty  of  1846,  directed  the 
Ministers  of  the  United  States  at  London  and  Paris  to 
confer  with  the  Governments  to  which  they  were  respec- 
tively accredited  in  regard  to  action  by  the  United  States, 
either  alone  or  jointly,  "in  guaranteeing  the  safety  of  the 
transit  and  the  authority  of  the  Granadian  Confederation, 
or  either  of  these  objects. "  "This  Government,"  declared 
Mr.  Seward,  "has  no  interest  in  the  matter  different  from 
that  of  other  maritime  powers.  It  is  willing  to  interpose 
its  aid  in  execution  of  its  treaty,  and  for  the  benefit  of  all 
nations." 

While  Mr.  Seward  was  still  Secretary  of  State,  the 
United  States  concluded  with  Nicaragua  a  treaty  contain- 
ing stipulations  similar  to  those  of  the  treaty  of  1846  with 
New  Granada.  The  treaty  with  Nicaragua,  which  is  com- 
monly known  as  the  Dickinson-Ayon  Treaty,  was  signed 
June  21,  1867,  and,  having  been  duly  approved  by  both 
Governments,  the  ratifications  were  exchanged  at  Mana- 
gua June  20,  1868.  It  is  still  in  force.  By  Article  XI\'. 
Nicaragua  grants  "to  the  United  States  and  to  their  citi- 
zens and  property  the  right  of  transit  between  the  At- 
lantic and  Pacific  oceans  through  the  territory  of  the 
Republic  on  any  route  of  communication,  natural  or  arti- 
ficial, whether  by  land  or  water,"  on  the  same  terms  as  it 
should  be  enjoyed  by  Nicaragua  and  its  citizens,  "the 
Republic  of  Nicaragua,  however,  reserving  its  rights  of 
sovereignty  over  the  same."  By  the  next  article,  the 
United  States  "agree  to  extend  their  protection  to  all 
such  routes  of  communication  as  aforesaid,  and  to  guar- 
antee the  neutralitv  and  innocent  use  of  the  same.      Thev 


12 

also  agree  to  employ  their  influence  with  other  nations  to 
induce  tliem  to  guarantee  such  neutrality  and  protection." 
It  is  evident  that  those  who  have  charged  Mr.  Hay  with 
proposing  to  give  away  a  right  of  exclusive  control  of  the 
Nicaragua  Canal,  granted  us  by  Nicaragua  itself,  with 
the  implied  concurrence  of  Great  Britain  and  other  powers, 
under  the  Dickinson-Ayon  Treaty,  either  have  not  read 
essential  stipulations  of  that  treaty  or  else  have  not  seen 
fit  to  quote  them. 

In  the  closing  year  of  President  Grant's  Administra- 
tion another  step  was  taken  toward  the  final  adjustment 
of  the  canal  question  on  the  lines  of  perfect  neutraliza- 
tion. As  appears  by  a  circular  of  Mr.  Fish,  then  Secre- 
tary of  State,  to  United  States  ministers,  of  February  28, 
1877,  a  draft  treaty  was  prepared,  "to  which  it  was  pro- 
posed to  obtain  the  accession  of  the  principal  maritime 
powers."  The  negotiations  failed  owing  to  certain  views 
of  Nicaragua,  which  were  neither  satisfactory  to  the 
United  States  nor  calculated  to  obtain  the  "cooperation" 
of  those  powers.  By  the  draft  treaty,  every  power  be- 
coming a  party  to  its  stipulations  and  guaranties"  was 
"at  all  times,  whether  in  peace  or  war,"  to  have  "the 
right  of  transit  "  through  the  canal  when  constructed,  as 
well  as  "the  benefit  of  the  neutral  waters  at  the  end 
thereof  for  all  classes  of  vessels  entitled  to  fly  their  re- 
spective flags,  with  the  cargoes  on  board,  on  equal  terms 
in  every  respect  as  between  each  other;"  and  "the  vessels 
of  war  and  other  national  vessels  "  of  such  powers  were  to 
have  "the  right  of  transit  through  the  canal." 

December  i,  1884,  Mr.  Frelinghuysen,  then  Secretary 
of  State,  and  Gen.  Joaquin  Zavala,  ex-President  of  Nica- 
ragua, signed  at  Washington  a  convention  by  which  the 
United  States  engaged  to  build  a  canal  at  its  own  cost, 
and  with  that  view  entered  into  a  "perpetual  alliance" 
with  Nicaragua  and  agreed  "to  protect  the  integrity  of 
the  territory  of  the  latter."  While  the  convention  pro- 
vided for  "equal"  tolls  for  the  vessels  of  "all  nations" 
(except  vessels  of  the  contracting  parties  engaged  in  the 


13 

coasting  trade),  and  contained  no  stipulation  for  the  for- 
tification of  the  canal,  yet  it  did  not  provide  for  its  neu- 
tralization. It  was  submitted  to  the  Senate  December  lo, 
1884.  It  had  not  been  approved  by  that  body  when,  in 
the  following  March,  President  Cleveland  withdrew  it  for 
reexamination.  Referring  to  this  act  in  his  annual  mes- 
sage of  December,  1885,  he  said: 

Whatever  highway  may  be  constructed  across  the  barrier  dividing 
the  two  greatest  maritime  areas  of  the  world  must  be  for  the  world's 
benefit,  a  trust  for  mankind,  to  be  removed  from  the  chance  of  domi- 
nation by  any  single  power,  nor  become  a  point  of  invitation  for  hos- 
tilities or  a  prize  for  warlike  ambition.  An  engagement  combining 
the  construction,  ownership,  and  operation  of  such  a  work  by  this 
Government,  with  an  offensive  and  defensive  alliance  for  its  protec- 
tion, with  the  foreign  state  whose  responsibilities  and  rights  we  would 
share,  is,  in  my  judgment,  inconsistent  with  such  dedication  to  uni- 
versal and  neutral  use,  and  would,  moreover,  entail  measures  for  its 
realization  beyond  the  scope  of  our  national  polity  or  present  means. 

The  lapse  of  years  has  abundantly  confirmed  the  wisdom  and  fore- 
sight of  those  earlier  Administrations  which,  long  before  the  condi- 
tions of  maritime  intercourse  were  changed  and  enlarged  by  the 
progress  of  the  age,  proclaimed  the  vital  need  of  interoceanic  transit 
across  the  American  isthmus  and  consecrated  it  in  advance  to  the 
common  use  of  mankind  by  their  positive  declarations  and  through 
the  formal  obligation  of  treaties. 

The  treaty  signed  by  Mr.  Hay  and  Lord  Pauncefote  on 
the  5th  of  February  and  transmitted  by  President  McKin- 
ley  to  the  Senate  on  the  same  day  provides: 

1.  The  canal  shall  be  free  and  open,  in  time  of  war  as  in  time  of 
peace,  to  the  vessels  of  commerce  and  of  war  of  all  nations  on  terms 
of  entire  equality,  so  that  there  shall  be  no  discrimination  against  any 
nation  or  its  citizens  or  subjects  in  respect  of  the  conditions  or  charges 
of  traffic  or  otherwise. 

2.  The  canal  shall  never  be  blockaded,  nor  shall  any  right  of  war  be 
exercised  nor  any  acts  of  hostility  be  committed  within  it. 

In  view  of  what  has  been  disclosed,  it  is  supertluous  to 
add  that,  no  matter  what  our  future  policy  may  be,  these 
stipulations  embody  our  historic  policy  in  respect  of  the 
interoceanic  canal. 


H 

THE    IDEA    OF    AMERICAN    CONTROL. 

The  idea  of  control  by  the  United  States,  not  in  the 
sense  of  ownership  or  management,  but  in  that  of  opposi- 
tion to  neutralization,  seems  to  have  originated  with  Sen- 
ator Douglas.  It  was  at  the  time  suggested,  with  a 
facetiousness  more  apparent  than  real,  that  he  took  this 
l^osition  because  it  was  the -only  one  by  the  assumption  of 
which  he  could  put  himself  in  opposition  to  all  other 
Presidential  aspirants,  including  those  of  both  political 
parties,  and  thus  obtain  an  opportunity  to  kill  them  all  off 
at  one  stroke. 

The  idea  of  American  control  was  put  forward  thirty 
years  later  by  President  Hayes  and  by  Mr.  Evarts,  as 
Secretary  of  State,  but  in  terms  that  do  not  define  what 
was  meant  b}^  it,  on  the  occasion  of  the  granting  of  the 
concession  for  the  Panama  Canal  by  the  Colombian  Gov- 
ernment to  Mr.  Lucien  N.  B.  Wyse,  as  the  representative 
of  the  International  Interoceanic  Canal  Association,  com- 
mionly  called  the  French  Company.  This  concession, 
however,  contained  clauses  which  were  not  only  exclusive 
in  their  nature,  but  which  also  affected  the  rights  and 
obligations  of  the  United  States  under  the  treaty  with 
New  Granada  in  1846. 

It  was  under  these  circumstances  that  President  Hayes 
said : 

It  is  the  right  and  duly  of  the  United  States  to  assert  and  maintain 
such  a  supervision  and  authoritj^  over  any  interoceanic  canal  across 
the  isthmus  that  connects  North  and  South  America  as  will  protect 
our  national  interests.  This,  I  am  quite  sure,  will  be  found  not  only 
compatible  with,  but  promotive  of,  the  widest  and  most  permanent 
advantage  to  commerce  and  civilization. 

Mr.  Evarts  elaborated  this  idea  with  special  reference  to 
the  treaty  of  1846,  which,  as  has  been  seen,  stipulates  for 
the  "perfect  neutrality"  of  the  Isthmus  of  Panama. 

Neither  President  Hayes  nor  Mr.  Evarts  proposed  that 
the  canal  should  be  fortified.  Such  a  proposal  was,  how- 
ever, put  forward  by  Mr.  Blaine,  in  his  instructions  to  Mr. 


15 

Lowell  of  November  19,  1881,  as  one  of  the  "modifica- 
tions" of  the  Clayton-Bulwer  Treaty  which  he  desired  the 
British  Government  to  concede.  He  not  only  proposed 
that  the  canal  should  be  fortified  by  the  United  States, 
but  he  also  frankly  declared  his  object  to  be  that  the 
United  States  should  use  the  canal  for  itself  in  time  of 
war,  while  closing  it  "impartialh^ "  to  the  war  vessels  of 
other  belligerents.  This  he  described  as  a  proposal  for 
the  preservation  of  the  "neutrality"  of  the  canal  by  the 
United  States.  But  it  seems  obvious  that  to  apply  the 
term  "  neutrality  "  to  such  a  plan  is  to  be  guilty  of  a  man- 
ifest contradiction  of  terms.  The  idea  of  neutrality  or 
neutralization  has  usually  been  deemed  incompatible  even 
with  the  mere  maintenance  of  armed  forces  and  fortifica- 
tions, to  say  nothing  of  the  offensive  or  warlike  use  of 
them.  When,  by  Article  IX  of  the  treaty  of  Vienna,  pro- 
vision was  made  for  the  "neutrality  of  the  Free  Town 
of  Cracow  and  its  territory,"  it  was  declared  in  the  same 
breath:  "No  armed  forces  shall  be  introduced  upon  any 
pretense  whatever."  When,  by  Article  XI  of  the  treaty 
of  Paris,  the  Black  Sea  was  "  neutralized,"  the  mainte- 
nance of  armaments  upon  it  was  forbidden.  In  the  neu- 
tralization of  Luxemburg  it  was  stipulated  that  the  city 
of  Luxemburg  should  no  longer  be  treated  as  a  federal 
fortress.  By  a  treaty  between  Austria,  France,  Great 
Britain,  Prussia,  and  Russia,  signed  at  London  Novem- 
ber 14,  1863,  the  Ionian  Isles  were  united  to  Greece  and 
were  neutralized.  Article  III  of  the  treaty  declares  that 
"as  a  necessary  consequence  of  the  neutrality  which  the 
Ionian  Isles  are  thus  to  enjoy,  the  fortifications  constructed 
in  the  Isle  of  Corfu  and  in  its  immediate  dependencies, 
having  no  longer  any  object,  shall  be  demolished."  The 
treaties  of  March  30,  1856,  November  2,  1865,  and  March 
13,  187 1,  having  effected  the  neutralization  of  the  Lower 
Danube  and  of  the  works  constructed  in  aid  of  its  navi- 
gation, the  treaty  of  Berlin  of  July  13,  1S78,  provided 
(Article  LII)  that  "all  the  fortresses  and  fortifications  ex- 
isting on  the  course  of  the  river  from  the  Iron  Gates  to 


i6 

its  mouth  "  should  be  "  razed  and  no  new  ones  erected." 
The  Argentine  Republic  and  Chile,  by  their  treaty  of  July 
23,   I  88  I,  declare  : 

Ariiclk  V.  The  Straits  of  Magellan  are  neutralized  forever,  and 
their  free  navigation  is  guaranteed  to  the  flags  of  all  nations.  To  in- 
sure this  neutrality  and  freedom,  it  is  agreed  that  no  fortifications  or 
military  defenses  which  might  interfere  therewith  shall  be  erected. 

The  convention  of  1888'  for  the  neutralization  of  the 
Suez  Canal  contains  substantially  the  same  stipulaticjns 
against  fortifications  as  the  Hay  treaty.  Indeed,  the  idea 
of  erecting  fortifications,  even  if  no  offensive  or  hostile 
use  of  them  be  intended,  for  the  purpose  of  preserving 
"neutrality,"  is  novel  in  public  law.  But,  whatever  may 
be  said  of  fortifying  a  place  in  order  to  preserve  its  "neu- 
trality," to  apply  the  term  "neutral"  to  a  canal  not  only 
fortified  by  some  one  power,  but  fortified  by  that  power 
with  the  avowed  design,  while  using  it  for  purposes  of 
war,  to  exclude  other  belligerent  powers  from  it,  is  to  lay 
ourselves  open  to  the  charge  of  a  confusion  of  ideas  and 
a  misuse  of  language. 

Mr.  Frelinghuysen,  in  continuing  in  1882  the  corre- 
spondence begun  by  Mr.  Blaine,  did  not  renew  the  latter's 
specific  proposals,  but  stated  that  a  canal  under  "  the 
protectorate  of  the  United  States  and  the  republic  whose 
territorj'  it  may  cross"  could  be  "freely  used  by  all  na- 
tions ;  "  and,  after  adverting  to  the  fact  that  commerce  had 
moved  through  the  Suez  Canal  "quietly  and  safely  under 
no  international  protectorate,"  he  added: 

The  President,  therefore,  considers  it  unnecessary  and  unwise, 
through  an  invitation  to  the  nations  of  the  earth,  to  guarantee  the  neu- 
trality of  the  Isthmus,  or  to  give  their  navies  a  pretext  for  assembling  in 
waters  contiguous  to  our  shores,  and  to  possibly  involve  this  Republic 
in  conflicts  from  which  its  natural  position  entitles  it  to  be  relieved. 

These  statements  seem  to  contemplate  a  provision  for 
neutrality  in  a  form  different  from  that  contained  in  the 
pending  treaty,  under  which  the  powers  are  simply  to 
pledge  themselves  neither  to  blockade  the  canal  nor  to 
exercise  any  right  of  war  or  commit  any  act  of   hostility 


17 

within  it.  Such  a  pledge  could  hardly  afford  their  navies 
"a  pretext  for  assembling  in  waters  contiguous  to  our 
shores." 

In  the  years  that  have  elapsed  since  this  correspond- 
ence took  place  our  situation  has  undergone  a  vast  change. 
We  were  then  engagingly  presented  by  our  Department 
of  State  to  foreign  nations  as  a  people  altogether  singular 
and  bent  upon  a  singular  policy.  We  had  neither  navy 
nor  distant  possessions,  nor  wanted  any;  and  it  might 
have  been  added  that  we  had  no  coast  defenses.  "  Kven 
as  simple  coaling  stations  '  said  Mr.  Frelinghuysen,  "ter- 
ritorial acquisitions  would  involve  responsibilities  beyond 
their  utility;"  and  he  laid  great  stress  upon  our  policy  of 
naval  weakness,  which  he  assumed  to  be  permanent.  To- 
day we  are  improving  our  coast  defenses,  we  hold  distant 
possessions  capable  of  great  development,  and  we  have 
a  navy  which  we  are  increasing  and  shall  continue  to 
increase. 

THE    POLICY    OF    NEUTRALIZATION    AND    THE 
MONROE     DOCTRINE. 

While  neutralization  appears  to  have  been  our  historic 
policy,  the  assertion  is  made  that  it  is  incompatible  with 
another  historic  policy — the  Monroe  doctrine;  and  this 
assertion  has  been  repeated,  with  especial  emphasis,  with 
reference  to  the  particular  guaranty  of  neutrality  found 
in  the  Clayton-Bulwer  Treaty.  That  many  of  our  states- 
men have  entertained  a  different  view  it  would  not  be 
difficult  to  prove  by  their  utterances  as  well  as  by  their 
acts;  for,  among  those  who  have  sustained  the  principle 
of  the  Clayton-Bulwer  Treaty,  there  are  numbered  some  of 
the  foremost  champions  of  the  Monroe  doctrine.  Without 
going  too  far  back,  it  is  believed  that  we  may  place  in  this 
category  Mr.  Olney,  who,  as  Secretary  of  State,  in  his  in- 
structions to  Mr.  Bayard  of  July  20,  1895,  on  the  \'cne- 
zuelan  boundary,  said: 

It  [the  Monroe  doctrine]  was  the  controlling  factor  in  ihc  cniancipa- 
tion  of  South  America,  and  to  it  the  independent  states  which  now 
divide  that  region  between   them  are  largely  indebted   for  their  very 


i8 

existence.  Since  then  the  most  striking  single  achievement  to  be 
credited  to  the  rule  is  the  evacuation  of  Mexico  by  the  French  upon 
the  termination  of  the  civil  war.  But  we  are  also  indebted  to  it  for  the 
provisions  of  the  Clayton-Bulwer  Treaty,  which  both  neutralized  any 
interoceanic  canal  across  Central  America  and  expressly  excluded 
Great  Britain  from  occupying  or  exercising  any  dominion  over  any 
part  of  Central  America. 

The  idea  thus  expressed-  by  Mr.  Olney  is  that  in  which 
the  treaty  was  conceived,  namely,  that  an  agreement  of 
neutralization  should,  as  a  measure  excluding  interven- 
tion, be  considered,  not  as  an  infringement,  but  as  a  ful- 
fillment of  the  Monroe  doctrine;  and  it  is  probable  that 
this  idea  would  have  continued  to  be  accepted  with  prac- 
tical unanimity  had  it  not  been  for  certain  stipulations 
which  the  Hay  treaty  nullifies  and  supersedes. 

Not  only  was  the  Clayton-Bulwer  Treaty  construed,  by 
reason  of  its  provision  against  "exclusive  control,"  as  in- 
hibiting either  Government  from  constructing  or  owning 
the  canal,  but  it  bound  them,  while  the  canal  was  in  proc- 
ess of  construction,  jointly  to  "protect"  all  persons  and 
property  connected  with  it  "from  unjust  detention,  con- 
fiscation, seizure,  or  any  violence  whatsoever,"  and,  after 
its  completion,  jointly  "to  protect  it  from  interruption, 
seizure,  or  unjust  confiscation,"  as  well  as  to  "guarantee  " 
its  neutrality.  These  stipulations  have  been  criticised  as 
creating  a  virtual  alliance  for  joint  protection  and  se- 
curity, even  to  the  extent  of  joint  intervention  in  the 
affairs  of  American  governments  within  whose  jurisdic- 
tion the  canal  riiight  lie,  and  as  constituting  in  this  sense 
a  violation  of  the  spirit  of  the  Monroe  doctrine.  This 
objection,  whether  well-founded  or  ill-founded,  is,  as  a 
simple  comparison  will  demonstrate,  removed  by  the  Hay 
treaty,  which  contains  no  stipulation  for  a  joint  guaranty, 
but  permits  the  United  States  alone,  subject  only  to  the 
engagement  of  neutralization,  to  construct,  manage,  and 
protect  the  canal: 


19 


CLAYTON-BULWER   TREATY. 

Article  I.  The  Governments  of 
the  United  States  and  Great  Brit- 
ain hereby  declare  that  neither 
the  one  nor  the  other  will  ever 
obtain  or  maintain  for  itself  any 
exclusive  control  over  the  said 
ship  canal;  *  *  *  neither  will 
ever  erect  or  maintain  any  fortifi- 
cations commanding  the  same, 
etc. 

Ar'I".  III.  The  persons  em-  i 
ployed  in  making  the  said  canal,  ' 
and  their  property  *  *  *  shall 
be  protected  *  *  *  by  the  Gov- 
ernments of  the  United  States  and 
Great  Britain  from  unjust  deten- 
tion, confiscation,  seizure,  or  any 
violence  whatsoever. 

Art.  V.  The  contracting  par- 
ties further  engage  that  when  the 
said  canal  shall  have  been  com- 
pleted they  will  protect  it  from 
interruption,  seizure  or  unjust 
confiscation  ;     *     *     * 


HAY    TREATY. 

Article  I.  It  is  agreed  that  the 
canal  may  be  constructed  under 
the  auspices  of  the  Government  of 
the  United  States,  either  directly 
at  its  own  cost,  or  by  gift  or  loan 
of  money  to  individuals  or  cor- 
porations or  through  subscription 
to  or  purchase  of  stock  or  shares, 
and  that,  subject  to  the  provisions 
of  the  present  convention,  the  said 
Government  shall  have  and  enjoy 
all  the  rights  incident  to  such  con- 
struction, as  well  as  the  exclusive 
right  of  providing  for  the  regula- 
tion and  managementof  the  canal. 

Art.  II.  No  fortifications  shall 
be  erected  commanding  the  canal 
or  the  waters  adjacent.  The 
United  States,  however,  shall  be 
at  liberty  to  maintain  such  mili- 
tary police  along  the  canal  as  may 
be  necessary  to  protect  it  against 
lawlessness  and  disorder. 


THE    CLAYTON-BULWER    TREATY. 

But  it  is  suggested  that  no  treaty  of  any  l<ind  should 
have  been  made,  and  particularly  that  no  recognition 
should  have  been  given  to  the  Clayton-Bulwer  Treaty, 
which,  it  is  said,  had  not  merely  ceased  to  exist,  but,  in 
fact,  never  legally  existed.  Concerning  the  question  thus 
raised,  it  is  our  duty  candidly  to  examine  our  own  record. 
The  facts  in  regard  to  the  treaty  are  neither  difficult  to 
ascertain  nor  hard  to  understand;  nor,  singularly  enough, 
did  the  controversies  to  which  it  gave  rise,  soon  after  it 
was  ratified,  relate  to  that  feature  of  it — the  principle  of 
neutralization — which  the  Hay  treaty  has  been  criticised 
for  sanctioning. 

As  has  been  shown,  the  Governments  of  the  United 
States  and  Great  Britain,  in  Article  I  of  tlie  Clayton- 
Bulwer  Treaty,    declared    that    neither  the  one    nor    the 


20 

Other  would  "ever  obtain  or  maintain  for  itself  any  ex- 
clusive control"  over  the  canal  by  way  of  the  River  San 
Juan  de  Nicaragua,  and  either  or  both  of  the  lakes  of 
Nicaragua  or  Managua.  To  this  end  they  further  agreed 
that  neither  would — 

Ever  erect  or  maintain  any  ftirtificatioii  commanding  the  same,  or 
in  the  vicinity  thereof,  or  occupy,  or  fortify,  or  colonize,  or  assume, 
or  exercise  any  dominion  over  'Nicaragua,  Costa  Rica,  the  Mosquito 
Coast,  or  any  part  of  Central  America;  nor  *  *  *  make  use  of  any 
protection  which  either  affords  or  may  afford,  or  any  alliance  which 
either  has  or  may  have  to  do  with  any  State  or  people  for  the  purpose 
of  erecting  or  maintaining  any  such  fortifications,  or  of  occupying, 
fortifying,  or  colonizing  Nicaragua,  Costa  Rica,  the  Mosquito  Coast, 
or  any  part  of  Central  America,  or  of  assuming  or  exercising  dominion 
over  the  same;  nor  *  *  *  take  advantage  of  any  intimacy,  or  use 
any  alliance,  connection,  or  influence  that  either  may  possess,  with  any 
State  or  Government  through  whose  territory  the  said  canal  may  pass, 
for  the  purpose  of  acquiring  or  holding,  directly  or  indirectly,  for  the 
citizens  or  subjects  of  the  one  any  rights  or  advantages  in  regard  to 
commerce  or  navigation  through  the  said  canal  which  shall  not  be 
offered  on  the  same  terms  to  the  citizens  or  subjects  of  the  other. 

When  this  agreement  was  made,  Great  Britain  held 
what  was  then  called  the  settlement  at  Belize,  or  British 
Honduras,  which  had  been  in  her  actual  possession  for 
half  a  century,  and  of  which  she  claimed  certain  islands 
to  be  a  dependency;  and  she  also  exercised  a  protectorate 
over  the  Mosquito  Coast.  The  ratifications  of  the  treaty 
were  exchanged  at  Washington  July  4,  1850.  On  the  29th 
of  the  preceding  month  Sir  Henry  Bulwer  communicated 
to  Mr.  Cla)'ton  the  following  memorandum : 

In  proceeding  to  the  exchange  of  ratifications  of  the  convention 
*  *  *  the  undersigned.  Her  Britannic  Majesty's  Plenipotentiary, 
has  received  Her  Majesty's  instructions  to  declare  that  Her  Majesty 
does  not  understand  the  engagements  of  that  convention  to  apply  to 
Her  Majesty's  settlement  at  Honduras,  or  to  its  dependencies.  Her 
Majesty's  ratification  of  the  said  convention  is  exchanged  under  the 
explicit  declaration  above  mentioned. 

Mr.  Clayton  on  the  4th  of  July  replied: 

The  language  of  Article  I  of  the  convention  concluded  on  the  19th 
of  April  last  between  the  United  States  and  Great  Britain  *  *  * 
was  neither  understood  by  them  nor  by  either  of  us  (the  negotiators) 


21 

to  include  the  British  settlement  in  Honduras  (commonly  called 
British  Honduras,  as  distinct  from  the  State  of  Honduras),  nor  the 
small  islands  in  the  neighborhood  of  that  settlement  which  may  be 
known  as  its  dependencies.  *  «  *  The  title  to  them  it  is  now 
and  has  been  my  intention  throughout  the  whole  negotiation  to  leave 
as  the  treaty  leaves  it,  without  denying,  affirming,  or  in  any  way  med- 
dling with  the  same,  just  as  it  stood  previously.  The  chairman  of  the 
Committee  on  Foreign  Relations  of  the  Senate,  the  Hon.  William  R. 
King,  informs  me  that  "  the  Senate  perfectly  understood  that  the  treaty 
did  not  include  British  Honduras."  It  was  understood  to  apply  to, 
and  does  include,  all  the  Central  American  States  of  Guatemala,  Hon- 
duras, San  Salvador,  Nicaragua,  and  Costa  Rica,  with  their  just  limits 
and  proper  dependencies. 

When  this  correspondence  was  communicated  to  the 
Senate,  it  gave  rise  to  a  discussion,  in  which  Mr.  Cass  bore 
the  leading  part.  Mr.  Cass  denied  the  authority  of  Mr. 
King  to  speak  for  him,  and  offered  a  resolution  instruct- 
ing the  Committee  on  Foreign  Relations  to  inquire  and 
report  what  measures,  if  any,  should  be  taken  by  the 
Senate  in  regard  to  the  correspondence.  The  committee 
reported  that  no  measures  were,  in  its  opinion,  necessary, 
and  none  were  taken.  The  treaty  had,  in  fact,  been  rati- 
fied by  a  vote  of  42  to  ir.*  The  case  was  allowed  to 
stand  as  the  two  Governments  had  made  it;  and  it  ap- 
pears that  their  representatives,  in  negotiating  the  treaty 
and  in  exchanging  its  ratifications,  considered  and  treated 
British  Honduras,  with  its  proper  limits  and  dependen- 
cies, as  having  once  formed  a  part  of  Yucatan  or  Mexico, 
and  not  as  a  part  of  Central  America;  and,  having  no 
power  to  determine  those  limits  and  dependencies,  they  left 
that  subject  to  be  adjusted  between  Great  Britain,  on  the 
one  hand,  and  Mexico  and  the  adjacent  Central  American 

♦This  number  includes  the  vote  of  Senator  Douglas,  who,  though  he  was  not  re- 
corded at  the  time,  afterward  stated  that  he  voted  against  the  treaty.  Willi  this 
inclusion,  the  vote  stood: 

"  Yeas— Messrs.  Badger,  Baldwin.  Bell,  Berrien.  Butler,  Cass,  Chase.  Clarke,  Clay. 
Cooper,  Corwin,  Davis  of  Massachusetts,  Dawson,  Dayton.  Dodge  of  Wisconsin, 
Dodge  of  Iowa,  Downs,  Felch,  Foote,  Green,  Hale,  Houston,  Hunter.  Jones.  King. 
Mangum,  Mason.  Miller.  Morton.  Norris.  Pearce.  Pratt.  Sebasdaii.  Seward.  Shields. 
Smith.  Soule,  Spruance.  Sturgeon,  Underwood,  Wales,  and  Webster    4J. 

"  Nays— Messrs.  Atchison,  Borland,  Bright.  Clemens,  Davis  of  Mississippi,  Dickin- 
son, Douglas,  Turney,  Walker,  Whitcomb,  and  Vulee     ii  " 


22 

States,  on  the  other.  In  July,  1852,  however.  Great  Brit- 
ain, by  a  proclamati(ni,  erected  the  Bay  Islands,  which 
she  claimed  as  a  dependency  of  British  Honduras,  into  a 
Crown  colony.  The  islands  were  also  claimed  by  the 
State  of  Honduras,  and  against  this  act  of  the  British 
Government  the  United  States  protested  as  a  violation  of 
the  treaty.  The  British  Government  also  claimed  that  it 
might,  under  the  terms  of  the  treaty,  continue  its  pro- 
tectorate over  the  Mosquito  Coast.  The  position  consist- 
ently maintained  by  the  United  States  in  the  controversies 
which  ensued  was  well  expressed  by  Mr.  Marcy,  Secre- 
tary of  State,  who,  in  an  instruction  to  Mr.  Borland, 
United  States  Minister  to  Central  America,  of  December 
30,  1853,  said: 

This  Government  considers  it  (the  Clayton-Bulwer  Treaty)  a  subsist- 
ing contract,  and  feels  bound  to  observe  its  stipulations  so  far  as  by 
fair  construction  they  impose  obligations  upon  it.  If  Great  Britain  has 
failed,  or  shall  fail,  on  her  part  to  fulfill  the  obligations  she  has  therein 
assumed,  or  if  she  attempts  to  evade  them  by  a  misconstruction  of  that 
instrument,  the  discussions  that  may  arise  on  these  subjects  must  nec- 
essarily take  place  between  the  parties  to  it.  *  *  *  It  is  believed 
that  Great  Britain  has  a  qualified  right  over  a  tract  of  country  called 
the  Belize,  from  which  she  is  not  ousted  by  this  treaty,  because  no  part 
of  that  tract,  when  restricted  to  its  proper  limits,  is  within  the  bound- 
aries of  Central  America. 

Mr.  Cass,  who  succeeded  Mr.  Marcy  as  Secretary  of 
State,  maintained  the  same  position,  declaring  on  various 
occasions  that  the  great  object  of  the  United  States  was 
to  effect  the  execution  of  the  treaty  and  thus  to  secure  the 
neutralization  of  interoceanic  communication.  The  result 
of  the  long-continued  negotiations  was  stated  by  President 
Buchanan  in  his  fourth  annual  message,  Mr.  Cass  still  be- 
ing Secretary  of  State,  as  follows: 

The  discordant  constructions  of  the  Clayton  and'Buhver  Treaty  be- 
tween the  two  Governments,  which  at  different  periods  of  the  discus- 
sion bore  a  threatening  aspect,  have  resulted  in  a  final  settlement 
entirely  satisfactory  to  this  Government.  In  my  last  annual  mes- 
sage I  informed  Congress  that  the  British  Government  had  not  then 
"completed  treaty  arrangements  with  the  Republics  of  Honduras  and 


23 

Nicaragua  in  pursuance  of  the  understanding  between  the  two  Gov- 
ernments. It  is,  nevertheless,  confidently  expected  that  this  good 
work  will  ere  long  be  accomplished."  This  confident  expectation  has 
since  been  fulfilled.  Her  Britannic  Majesty  concluded  a  treaty  with 
Honduras  on  the  28th  November,  1859,  and  with  Nicaragua  on  the 
2Sth  August,  i860,  relinquishing  the  Mosquito  protectorate.  Besides, 
by  the  former,  the  Bay  Islands  are  recognized  as  a  part  of  the  Republic 
of  Honduras. 

Since  i860  the  Government  of  the  United  States  has  on 
various  occasions  referred  to  the  Clayton-Bulwer  Treaty 
as  a  subsisting  convention.  Mr.  Fish,  as  Secretary  of 
State,  in  a  memorandum  communicated  to  the  Nicaraguan 
Minister,  February  16,  1877,  said: 

The  obligation  of  the  Clayton-Bulwer  Treaty,  including  that  which 
provides  for  an  invitation  to  other  powers  to  join  in  guaranteeing  the 
neutrality  (of  the  canal),  are  still  subsisting.  This  Government  has 
hitherto  abstained  from  making  a  proposition  on  the  subject  to  other 
powers,  because  there  has  been  no  prospect  of  a  completion,  or  even 
of  a  commencement,  of  the  canal.  Having  already  entered  into  the 
stipulation  with  Great  Britain,  and  that  still  being  in  force,  its  repeti- 
tion in  a  treaty  with  Nicaragua  might  imply  a  doubt  of  the  good  faith 
of  the  United  States  on  the  subject. 

Mr.  Blaine,  in  his  correspondence  with  the  British  Gov- 
ernment in  1881,  expressed  the  earnest  hope  that  Great 
Britain  would  "concede"  certain  "modifications"  of  the 
treaty,  the  rest  of  it  to  "remain  in  full  force."  Indeed, 
by  those  who  hold  that  the  United  States  should  as  a  mat- 
ter of  policy  rid  itself  of  the  obligations  of  the  Clayton- 
Bulwer  Treaty,  Mr.  Blaine  has  been  severely  criticised 
for  making  this  broad  acknowledgment  of  its  continuing 
validity.  Mr.  Frelinghuysen,  who  took  up  the  correspond- 
ence where  Mr.  Blaine  left  it,  is  sometimes  supposed  to 
have  held  the  treaty  to  be  null  and  void.  This  supposi- 
tion is  altogether  erroneous.  Instead  of  declaring  the 
treaty  to  be  void,  he  merely  expressed  the  opinion  thai  it 
was  "voidable,"  and  this  opinion  he  based  upon  a  hypoth- 
esis and  not  upon  any  positive  assumption  of  fact.  He 
based  it  solely  upon  the  question  as  to  British  Honduras. 
Nevertheless,  he  did  not  discuss  the  question  whether  Brit- 
ish Honduras  was  ever  a  part  of  Central  America,  nor  did 


24 

he  assert  that  it  was.  On  the  contrary,  he  contented  him- 
self with  saying,  "  If  Great  Britain  has  violated  and  con- 
tinues to  violate"  the  treaty  by  holding  British  Honduras, 
then  "  the  treaty  is,  of  course,  voidable  at  the  pleasure  of 
the  United  States."  Mr.  Olney,  as  has  been  seen  in  his 
instructions  to  Mr.  Bayard  of  July  20,  1895,  a  copy  of 
which  was  communicated  to  the  British  Government,  re- 
ferred to  the  treaty  as  a  subsisting  engagement. 

THE    GENERAL    TREATY    SITUATION. 

But  the  Clayton-Bulwer  Treaty  is  not  the  only  act  by 
which  the  neutralization  of  the  canal  is  pledged.  In  re- 
spect to  the  Panama  Canal,  "there  is  also  our  treaty  with 
New  Granada  of  1846,  to  which  we  have  heretofore  ad- 
verted, and  if  this  treaty,  which  is  terminable  on  notice, 
were  out  of  the  way,  it  remains  to  be  seen  whether  Colom- 
bia would  negotiate  on  any  other  basis.  The  situation 
in  respect  of  the  Nicaragua  Canal  appears  to  be  more 
complicated.  The  treaty  of  peace  and  friendship  between 
Spain  and  Nicaragua  of  July  25,  1850,  provides  (Article 
XIII)  that  the  former  power  shall  "enjoy  on  the  transit 
the  same  advantages  and  exemptions  as  are  granted  to  the 
most  favored  nation,"  and  shall,  on  the  other  hand,  guar- 
antee its  "neutrality,"  in  order  "to  keep  the  transit 
thereby  free"  and  "protect  it  against  all  embargo  or  con- 
fiscation," and  the  treaty  between  Spain  and  Costa  Rica 
of  May  10,  1850,  grants  (Article  XIII)  to  the  Spanish  flag 
and  merchandise  "free  transit"  upon  any  canal  through 
the  territory  of  Costa  Rica  on  the  same  terms  as  "the 
vessels,  merchandise,  and  citizens"  of  the  latter  country. 
By  Articles  XXVII-XXXIII  of  the  treaty  of  amity,  com- 
merce, and  navigation,  between  France  and  Nicaragua, 
of  April  II,  1859,  the  neutrality  and  free  use  of  the  canal 
are  amply  guaranteed.  The  treaty  of  commerce  between 
Great  Britain  and  Nicaragua  of  February  11,  i860,  con- 
tained similar  stipulations;  but  it  expired  June  11,  1888, 
on  notice  given  in  conformity  with  its  terms.  The  treaty 
between  Italy  and  Nicaragua  of  March  6,  1868,  provides 


25 

for  most-favored-nation  treatment  in  respect  of  "naviga- 
tion," as  well  as  of  commerce.  Last,  but  not  least,  there 
is  our  own  treaty  with  Nicaragua  of  1867,  the  precise 
stipulations  of  which   have  already  been  quoted. 

SUMMARY    OF    RESULTS. 

Our  investigations  seem  to  have  shown: 

1.  That  the  engagement  of  neutralization,  embodied  in 
the  Hay  treaty,  is  amply  supported  by  precedent  and  by 
principle. 

2.  That  the  policy  of  a  neutralized  canal  is  the  historic 
policy  of  the  United  States. 

3.  That  the  Clayton-Bulwer  Treaty,  in  stipulating  for 
neutralization,  excluded  either  Government  from  con- 
structing and  owning  the  canal,  but  permitted  and  re- 
quired both  Governments  to  protect  it  against  all  attacks. 

4.  That  this  treaty  has  been  repeatedly  and  continually 
referred  to  and  acted  upon  by  the  United  States  as  a  sub- 
sisting engagement,  and  has  never  in  fact  been  declared 
to  be  at  an  end. 

5.  That,  if  the  Clayton-Bulwer  Treaty  were  abrogated, 
the  situation  would  not  be  radically  altered,  since  the 
neutralization  of  the  canal  is  guaranteed  by  various  other 
treaties. 

6.  That  the  Hay  treaty,  while  adhering  to  the  policy 
of  neutralization,  permits  the  United  States  to  construct, 
own,  and  manage  the  canal,  does  away  with  all  stipula- 
tions for  joint  intervention,  and  concedes  to  the  United 
States  alone  the  liberty  to  afford  protection  against  law- 
lessness and  disorder. 

Into  the  military  question,  with  which  the  argument 
against  neutralization  is  for  all  practical  purposes  exclu- 
sively concerned,  I  have  not  attempted  to  enter.  One 
view  of  it  is  well  expressed  in  the  reported  statement  of 
Admiral  Dewey: 

Fortifications?  Why,  of  course  not.  As  I  understand  it,  the  canal 
is  to  be,  and  should  be,  a  neutralized  commercial  pathway  between  the 
two  great  oceans.     To  fortify  it  would  simply  result  in  making  it  a 


26 

battle  ground  in  case  of  war.  Fortifications  would  be  enormously  ex- 
pensive, and  ought  not  to  be  erected.  Our  fleets  will  be  a  sufficient 
guaranty  of  the  neutrality  and  safety  of  the  canal  in  time  of  war,  as 
well  as  in  peace. 

In  opposition  to  this  weighty  opinion  of  the  hero  of 
Manila,  it  may  be  urged  that  circumstances  may  be  con- 
ceived in  which  exclusive  military  control  would,  if  attain- 
able, constitute  a  great  advantage.  This  view,  however, 
may  suggest  the  retort  that  circumstances  may  readily  be 
conceived  in  which  the  assurance  of  an  unobstructed  pas- 
sage would  constitute  as  great  an  advantage;  that,  to 
argue  from  conceivable  circumstances,  is  in  effect  to  admit 
that  the  question  is  one  of  chance,  and  that,  in  such  a 
predicament,  considerations  of  another  order,  such  as  the 
security  and  preservation  of  the  canal,  the  freedom  of 
commerce  and  navigation,  and  that  "decent  respect  to 
the  opinions  of  mankind,"  of  which  the  Declaration  of  In- 
dependence speaks,  should  prove  decisive. 

J.   B.   Moore. 


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